This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the General
Counsel. The Respondent did not file an opposition to the exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1)
and (2) of the Federal Service Labor-Management Relations Statute (the Statute)
by lowering an employee's performance rating because the employee was a Union
official who used official time for representational activities and by making
certain statements to the employee.(1) The Judge initially found that the Respondent did not violate
the Statute as alleged in the complaint and, therefore, recommended that the
complaint be dismissed. In 46 FLRA 1375, the Authority remanded the complaint
to the Judge for further findings. On remand, the Judge again found that the
Respondent did not violate the Statute as alleged in the complaint and
recommended that the complaint be dismissed.

Upon consideration of the Judge's decisions, the General Counsel's
exceptions, and the entire record, we find, contrary to the Judge, that the
Respondent violated section 7116(a)(1) and (2) as alleged in the complaint.

II. Background

A. Facts

The Union is the exclusive representative of a unit of the Respondent's
employees. The Respondent operates a Job Training Center for young adults (the
Center) within its Daniel Boone National Forest (the Forest). Employee Joyce
Roach has been a GS-5 Purchasing Agent at the Center for approximately 12
years. From 1987 until January of 1990, Roach was supervised by Support
Services Supervisor Deana Lesch. Lesch was transferred to another part of the
Forest sometime in January of 1990. From that time until March 25, 1990, Roach
was supervised by Lesch's former supervisor, Administrative Officer Emma
Caswell. On March 25, 1990, Linda Henry became the new Support Services
Supervisor and Roach's first-line supervisor. Henry had no purchasing
experience and was a GS-5 personnel clerk at the Center prior to her selection
as Support Services Supervisor.

As the Center's Purchasing Agent, Roach purchases and makes payments
for most of the material used by the Center. Roach's performance is rated on
four critical elements and one noncritical element. The four critical elements
are: (1) Small Purchasing, which involves reviewing and acting on
procurement requests from the Center staff; (2) Imprest Fund Cashier; (3)
Purchases other than Purchase Orders, which involves checking vouchers and
other forms for accuracy and consistency with current guidelines; and (4) Order
and Payment Follow-up, which involves initiating follow-up on all outstanding
orders or payments that are not received by the requested delivery date. The
noncritical element, Procurement Reports and Files, includes maintaining
purchase order status files and gathering and submitting "tear sheets."(2)

For the period from October 1, 1987, to September 30, 1988, Lesch
rated Roach as Fully Successful on elements 1, 3, and 5, and Exceeds Fully
Successful on elements 2 and 4. Accordingly, consistent with Agency guidelines,
Lesch rated Roach's overall performance for that period as Fully Successful.
For the period from October 1, 1988, to September 30, 1989, Lesch
rated Roach as Fully Successful on elements 1 and 3, and Exceeds Fully
Successful on elements 2, 4, and 5. Accordingly, consistent with Agency
guidelines, Lesch rated Roach's performance for that period as Superior.
Caswell approved the rating, despite the fact that she had received some
complaints from supervisors or department heads about Roach's work. Lesch
supervised Roach from October 1, 1989, until sometime in January of 1990,
when Lesch was transferred to another, nearby part of the Forest. Although
Lesch supervised Roach for more than 90 days of her 1989-90 performance period,
Lesch did not provide any input, and management made no attempt to gain her
input, on Roach's performance during that portion of her 1989-90 performance
period.

During her 1988-89 performance period, Roach was a Union steward at the
Center. The parties' collective bargaining agreement provides in part for
management to grant "'reasonable amounts'" of official time and permits
management to "delay [its] release only 'due to work-related reasons . . . .'"
Judge's Decision at 3 n.3. During the 1988-89 performance period, Roach used
between 20 and 50 hours of official time for representational activities
and filed approximately five grievances or unfair labor practice charges.
However, during Roach's 1989-90 performance period, Union activity and
membership at the Center "blossomed." Id. at 3.

In January of 1990, Roach was elected the Vice President of the Union
and, as a result, was responsible for representational functions concerning
bargaining unit employees throughout the Forest. In that capacity, Roach filed
or participated in approximately thirty grievances and unfair labor practice
charges against the Respondent, including grievances and unfair labor practice
charges which referenced Henry.(3) From January of 1990 to October 1, 1990, Roach used
approximately 580 hours of official time to conduct representational
activities. Roach usually cleared her official time requests with Henry.

The Respondent does not dispute that, despite having spent
approximately 28 percent of her time during 1989-90 on official time, as
opposed to approximately 2 percent of her time in 1988-89, Roach performed
basically the same amount of work in 1989-90.(4)

In March of 1990, prior to Henry's selection as supervisor, Caswell
conducted a mid-year review of Roach's performance and stated that she "had
nothing to go on" to indicate that Roach's performance was not as good as it
had been the year before and that problems with Roach's performance "w[ere] not
surfacing at that time." Transcript at 185, 199. Nevertheless, during that
review, Caswell modified part of critical element 3 to require Roach to forward
vouchers to the supervisor's office monthly rather than weekly and part of
noncritical element 5 to delete Roach's "tear sheet" responsibilities.

The record does not indicate whether Roach needed, or was given, any
further assistance with her duties prior to June 30, 1990. The program year for
purchasing items at the Center ends on June 30. If funds for a particular year
are not allocated by June 30 of that year, they are not available for use by
the Agency. At the end of June and the beginning of July of 1990, Caswell and
Henry learned through complaints from other supervisors that Roach was having
problems meeting requisition deadlines and that, as a result, some funds for
the program year were not obligated and, thus, not available for use by the
Agency. Subsequently, Caswell presented Roach with a letter dated July 6,
1990, stating in part that "[d]ue to the Center[']s needs and the beginning of
a New Program Year, the procurement activity has been questioned." Respondent's
Exhibit 2. The letter further stated that Caswell and others had gone through
Roach's current requisitions and had prioritized them for her, and that if
Roach needed typing assistance, she was to let Henry or Caswell know. Henry
acknowledged that after Caswell developed the priority system, Roach met
required deadlines, and Henry did not receive as many complaints about Roach's
requisition work.

In "August or early September [of 1990,] Henry pencilled in a rough
draft of her evaluation of Roach." Judge's Decision at 7. On critical element
1, Small Purchasing, Henry noted in part that "the Center staff frequently
complained [that] they were not getting items as quickly as they needed them,
even when they were priority" and "suggested a [fully] successful rating."
Id.(5) On critical element 2, Imprest
Fund Cashier, Henry "noted that Roach 'never' had adequate money on hand" but
suggested a rating of Fully Successful. Id. At the hearing, Henry
"conceded her strong language was hyperbole." Id. On critical element 3,
Henry noted in part that Roach "did not always get [vouchers] out on a weekly
basis" and recommended a rating of Fully Successful. Id.(6) On critical element 4, Order and
Payment Follow-Up, Henry noted little activity involving this element and
recommended a rating of Fully Successful. On noncritical element 5, Procurement
Reports and Files, "Henry's remarks were all favorable and the rating was
'exceeds.'" Id. Prior to Caswell's transfer in September of 1990, Henry
submitted her recommendations for Caswell's approval, and Caswell approved the
recommended rating of Fully Successful.

According to Roach, sometime during August or September of 1990, Henry
stated to Roach that she "was using an awful lot of official time and it was
affecting [her] timeliness on getting procurement out . . . ." Id. at
4-5. Henry denied ever saying that Roach's use of official time was affecting
her performance. Roach further testified that on several occasions during the
spring or summer of 1990, Caswell said that Roach "was spending an awful lot of
time on official time and it was affecting her procurement." Id.
at 5. Caswell "denied that she had ever stated that Roach's 'official time
usage would affect her performance.'" Id.

On October 1, 1990, Roach received her performance rating from Henry
for the period from October 1, 1989, to September 30, 1990. Roach was rated
Fully Successful on critical elements 1, 2, 3, and 4, and Exceeds Fully
Successful on noncritical element 5, for an overall rating of Fully Successful.
Roach stated to Henry that she disagreed with the rating and contended that she
had accomplished the same amount of work as she had during her 1988-89
performance period but in less time. Roach maintained that the only real
explanation offered by Henry was that she had a different supervisor this year.
On the other hand, Henry stated that she talked with Roach about the elements
and ratings given and informed Roach that she did not compare the amount of
work for the 2 years, but based her rating on "timeliness, accuracy, [and]
deadlines[.]" Id. at 8. The Judge found that "both accounts [were]
largely true" but that the "bottom line explanation was that the two
supervisors saw things differently in the different years." Id. at 8
n.5. Roach and Henry met again to discuss Roach's performance rating and Henry
reaffirmed her original decision. Following her second meeting with Henry,
Roach attached to her performance appraisal a memorandum dated October 15,
1990. The memorandum stated in essence that Roach refused to sign her appraisal
because she believed it was based on discrimination for Roach's Union
involvement, as indicated by Henry's and Caswell's comments that Roach was
"'spending so much time on [U]nion work that it might affect [her]
performance.'" Id. at 8 (quoting Joint Exhibit C).

In Caswell's absence, Henry had Center Director Young sign the
finalized rating. Subsequently, Roach filed an unfair labor practice charge,
and the General Counsel issued a complaint, alleging that the Respondent
violated the Statute by stating in essence to Roach that her use of official
time had to affect her performance and by lowering Roach's performance rating
because she engaged in protected activity.

The Administrative Law Judge concluded that the Respondent did not
violate the Statute as alleged in the complaint. The Judge examined
management's allegedly coercive statements to Roach and found that the record
did not indicate that the Respondent was hostile to Roach based on her Union
office or her time spent on representational matters. Without finding whether
any statements were made or, if so, were made in the context of an attempt to
accommodate a conflict between management's right to manage efficiently and
Roach's right to engage in Union activity, the Judge found that "the statements
at issue, if ever made in such form," did not violate section 7116(a)(1) of the
Statute. Id. at 13. The Judge next examined whether the Respondent
violated section 7116(a)(1) and (2) of the Statute by lowering Roach's
performance rating from Superior to Fully Successful. The Judge found that
there was "no persuasive evidence of Union animus" and that, based on
her previous performance and her performance for 1989-90, the disputed rating
was not "so transparently off base as to warrant the conclusion that Roach's
protected activity was a 'motivating factor'" in the Respondent's decision to
rate her performance for 1989-90 as Fully Successful. Id. at 14. The
Judge concluded that the General Counsel had not established a primafacie case of discrimination under Letterkenny Army Depot, 35
FLRA 113 (1990) (Letterkenny) and, thus, that the Respondent did not
violate section 7116(a)(1) and (2) of the Statute.

B. Decision in 46 FLRA 1375

With respect to the allegation that the Respondent violated section
7116(a)(1) of the Statute, the Authority found that it was unable to determine
from the Judge's decision or the record whether Henry actually made any
statement as alleged in the complaint and, if so, whether the statement was
made in an attempt to accommodate a conflict between management's right to
manage efficiently and the employee's right to engage in protected
activity.(7) Because resolving the issue of whether management violated
section 7116(a)(1) of the Statute depended on whether Henry made the statement
and, if so, under what circumstances, and because the Authority was unable to
decide those issues, the Authority remanded the complaint to the Judge for
findings necessary to resolve whether the Respondent violated section
7116(a)(1) of the Statute.

With respect to the allegation that the Respondent violated section
7116(a)(2) of the Statute, the Authority examined whether, consistent with
Letterkenny, the Respondent's decision to lower Roach's performance
rating was motivated by her protected activity. To decide this issue, the
Authority found that it was necessary to determine "whether in August or
September of 1990, Henry actually told Roach that she was 'using an awful lot
of official time and [that] it was affecting her timeliness on getting
procurement out[,]' and, if so, under what circumstances." 46 FLRA
at 1387 (quoting Judge's Decision at 4-5). The Authority further found
that if Henry made such a statement, then it would be necessary to determine
whether the statement, its surrounding circumstances, and any other evidence
offered by the General Counsel established a primafacie case of
discrimination under Letterkenny. However, the Authority found that it
was unable to decide this issue because it was unable to determine whether
Henry made the statement as alleged. Accordingly, the Authority remanded the
complaint to the Judge for findings necessary to resolve whether Henry made the
statement as alleged. Further, the Authority stated that if the Judge found
that the statement was made as alleged, the Judge was to apply the standard
articulated in Letterkenny to determine whether the Respondent violated
section 7116(a)(2) of the Statute.

C. Administrative Law Judge's Decision on Remand

1. Credibility Determinations

On remand, the Judge stated that he was attempting to "provide a full
accounting of [his] method in making the credibility resolution[s] . . ."
Judge's Decision on Remand at 5. In making the necessary credibility
findings, the Judge noted that he "did not find demeanor helpful." Id.
The Judge reexamined the record and concluded that Roach was "an unreliable
witness, and [that he] would credit Caswell or Henry where their stories
conflict." Id. at 6.

2. Factual Findings

The Judge found that "Henry did say 'words to the effect' to Roach that
she was using official time at a rate which was affecting her ability to get
her procurement work done in timely fashion." Id. The Judge further
found that "no direct evidence about the context of the statement was offered
by Roach" or by the supervisors. Id. Despite this latter finding, the
Judge determined that a statement "linking official time usage to a lack of
timeliness in getting her work done" was "made in the benign context of an
offer of assistance made by either or both of [Roach's] supervisors."
Id. The Judge also determined that "words making the same link were
uttered by Henry in explanation of her refusal to approve several official time
requests" and that there was "no evidence that such words were
contemporaneously accompanied by offers of assistance." Id. at 6-7. The
Judge noted that Roach testified that such a statement was made in August or
September of 1990. The Judge found, however, that "even though there is no
other statement about its timing[,]" he "think[s] it likely such conversations
occurred in June or early July, when Roach's problems were surfacing and most
serious." Id. at 7 n.5.

3. Legal Conclusions

Having found that Henry made a statement to Roach linking Roach's
official time use to her lack of timeliness in getting her work done and that
the statement was not made in an attempt to offer assistance to Roach, the
Judge examined whether the statement violated section 7116(a)(1) of the
Statute. The Judge stated that the question was "whether the statement that the
use of further official time was being disapproved because such use was already
preventing timely processing of requisitions[] carried with it a threat of
negative career consequences for Roach." Id. at 9. The Judge
determined that he saw "no reason why a supervisor risks a finding that she
intimidates or coerces a subordinate when she refuses to approve a request for
official time on the express ground that the employee is already behind in the
timely completion of certain work because of official time usage" and that he
saw "no threat of a low performance rating in such an explanation[.]"
Id. at 7. The Judge found that no inference of negative career
consequences could properly be drawn from such an observation by a supervisor.
According to the Judge, such an observation "is unavoidable if any explanation
is offered for a refusal to grant a request for more [official] time."
Id. at 9. The Judge stated that this case was distinguishable from
Department of the Air Force, Ogden Air Logistics Center, Hill Air Force
Base, Utah, 35 FLRA 891 (1990) (Ogden Air Logistics Center) because
in this case there were "no words [] used in a way suggesting that protected
representational activity would adversely affect [the] rating." Id.

The Judge concluded that "[i]f it is appropriate to infer such a
message from the kind of expression here involved, then any discussion
concerning the impact of such activity on one's job would be unlawful absent a
proffer of help or a disclaimer." Id. Based on the foregoing reasoning,
the Judge recommended that the Authority dismiss the allegation in the
complaint that the Respondent violated section 7116(a)(1) of the Statute.

The Judge next examined whether the Respondent violated section
7116(a)(2) of the Statute by lowering Roach's performance rating for 1989-90.
Applying the standard articulated in Letterkenny, the Judge concluded
that there was "no evidence that Roach's protected activity was a motivating
factor in the decision of her new supervisor to give her a lower rating" and,
therefore, that the General Counsel had failed to establish a primafacie case of discrimination consistent with Letterkenny.
Id. at 10. In reaching this conclusion, the Judge found nothing in
Henry's statement "suggesting hostility to the Union or towards Roach based on
her Union activity." Id. The Judge further found that there was "no
reason to attach untoward meaning to the timing of [Roach's] appraisal, a
matter mandated by law." Id. Having concluded that the General Counsel
failed to establish a primafacie case of discrimination, the
Judge recommended that the Authority dismiss the allegation in the complaint
that the Respondent violated section 7116(a)(2) of the Statute.

III. Position of the General Counsel

The General Counsel argues that there are "glaring inconsistencies" in
the Judge's credibility findings in his two decisions. Exceptions at 21. The
General Counsel asserts that in light of these inconsistencies, the Authority
should "overrule and reject the Judge's credibility findings" in the decision
on remand. Id.

On the merits, the General Counsel contends that the Judge erred in
finding that Henry's statement did not violate section 7116(a)(1) of the
Statute. The General Counsel argues that the statement "reasonably led Roach to
believe that her continued use of official time would negatively impact her
performance rating." Id. at 14. The General Counsel further argues that
the Judge failed to consider that "the statement, given its content and context
. . . was a threat[.]" Id. at 15. The General Counsel notes that
notwithstanding the Judge's finding that Henry made the statement in June or
July of 1990, "Roach testified that it occurred later--closer to Henry's
completion of her performance appraisal[.]" Id.

The General Counsel also contends that the Judge erred in finding that
the Respondent did not violate section 7116(a)(2) of the Statute when it
lowered Roach's performance rating. According to the General Counsel, the
record shows that Union animus was prevalent at the Center, management was
displeased with Roach's increased Union activity, Henry believed that Roach's
involvement in this activity did and would affect Roach's performance, and
Henry threatened Roach regarding her use of official time. The General Counsel
maintains that in these circumstances Roach's protected activity was a
motivating factor in the Respondent's decision to lower her performance rating
and, therefore, that the Judge should have found that the General Counsel
established a primafacie case of discrimination under
Letterkenny. Further, the General Counsel argues that the Respondent did
not establish that there was a legitimate justification for the rating within
the meaning of Letterkenny. Rather, the General Counsel asserts that the
record shows that the Respondent's decision to lower Roach's performance rating
was "motivated solely by her protected activity" in violation of section
7116(a)(1) and (2) of the Statute. Id. at 21.

Finally, to remedy the unfair labor practices, the General Counsel
requests that the Authority order the Respondent to cease and desist from
making coercive statements to employees and discriminating against Roach,
rescind Roach's 1989-90 appraisal and properly reappraise her, and provide
Roach with any benefits to which she would have been entitled as a result of
the reappraisal.

IV. Analysis and Conclusions

For the following reasons, we find, contrary to the Judge, that the
Respondent violated section 7116(a)(1) and (2) of the Statute.

A. Preliminary Matters

1. Credibility Determinations

We note the General Counsel's argument that there are "glaring
inconsistencies" in the Judge's credibility findings in his two decisions and
that in light of these inconsistencies, the Authority should "overrule and
reject the Judge's credibility findings" in the decision on remand. Exceptions
at 21.

The demeanor of witnesses is an important factor in resolving issues of
credibility, and the Judge has had the benefit of observing the witnesses while
they testified. The Authority will not overrule a judge's credibility
determinations unless a clear preponderance of all relevant evidence
demonstrates that the determinations are incorrect. SeeU.S.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and Social Security Administration, Detroit Teleservice
Center, Detroit, Michigan, 42 FLRA 22, 25 (1991). On remand, the Judge did
not, and was not required to, hold a second hearing in this case. Rather, as he
"did not find demeanor helpful[,]" the Judge made factual and credibility
determinations by reexamining the existing record. Judge's Decision on Remand
at 5. Some of the Judge's determinations in his decision on remand appear
inconsistent with his determinations in his initial decision and his decision
on remand. For example, as noted by the General Counsel, the Judge found in his
initial decision that Roach was "truthful" in her recollection but concluded in
his decision on remand that Roach was an "unreliable witness" whom he would not
credit when her recollection conflicted with that of her supervisors. Judge's
Decision at 12; Judge's Decision on Remand at 6. However, having stated that he
would credit the supervisors' testimony over Roach's, the Judge then credited
and "accept[ed] the version [of a statement] offered by Roach," rather than
Henry's denial that any statement had been made. Judge's Decision on Remand at
6. As we discuss below, we adopt only those determinations that we find are
consistent with the record. SeegenerallyUnited States
Customs Service, Region IV, Miami District, Miami, Florida, 36 FLRA 489,
498 n.3 (1990) (the Authority was "unable to credit" testimony that the judge
had credited).

2. Findings of Fact

In part II.A. of this decision, we set forth our findings of fact, as
stated in 46 FLRA 1375 and as supported by the record. Additionally,
except as stated below, we adopt the factual findings of the Judge noted in
part II.C.2. of this decision.

B. Section 7116(a)(2) of the Statute

Section 7116(a)(2) of the Statute provides that it is an unfair labor
practice for an agency to encourage or discourage membership in a union by
discrimination in connection with hiring, tenure, promotion, or other
conditions of employment. The Authority has stated that the framework in
Letterkenny will be applied to cases of alleged discrimination under
section 7116(a)(2). Letterkenny, 35 FLRA at 117. In Letterkenny,
we reaffirmed that:

[i]n all cases of alleged discrimination, . . . the General Counsel
must establish that: (1) the employee against whom the alleged discriminatory
action was taken was engaged in protected activity; and (2) such activity was a
motivating factor in the agency's treatment of the employee in connection with
hiring, tenure, promotion, or other conditions of employment.

Id. at 118.

If the General Counsel makes the required primafacie
showing, a respondent may seek to rebut that showing by establishing, by a
preponderance of the evidence, the affirmative defense that: (1) there was a
legitimate justification for its action; and (2) the same action would have
been taken in the absence of protected activity. Id. at 123.

The parties do not dispute that in 1988-89 Roach engaged in protected
activity by spending approximately 28 percent of her time on official
time, as opposed to 2 percent in 1988-89, that management was aware of that
activity, and that Caswell found no problems with Roach's performance at her
mid-year review in March of 1990. The parties also do not dispute that,
although Roach performed basically the same amount of work during both
appraisal periods, Roach received a lower performance rating from Henry in
1989-90 than she did from Lesch in 1988-89.(8)

The first issue is whether the Respondent's decision to lower Roach's
performance rating for 1989-90 was motivated by her protected activity. The
Judge found that in the course of refusing to approve several official time
requests, Henry made a statement to Roach "linking official time usage to a
lack of timeliness in getting her work done" and that there was "no evidence
that such words were contemporaneously accompanied by offers of assistance."
Judge's Decision on Remand at 6-7. According to Roach, the statement was made
in August or September of 1990.(9) Henry's statement equated Roach's use of official time with
the timeliness of her work. Such a statement, combined with evidence that Henry
subsequently lowered Roach's rating based in part on timeliness, demonstrates
that Henry directly connected Roach's use of official time, her performance,
and ultimately her rating. SeeOgden Air Logistics Center,
35 FLRA at 900 (the General Counsel established a primafacie case under Letterkenny by showing that management's
statements to the employee "drew a direct connection between protected activity
and [the employee's] chances of obtaining a higher performance appraisal").

Moreover, the timing of Henry's statement, near the end of the
appraisal period, demonstrates that the statement was made around the same time
that the Judge found Henry to have "pencilled in" notes of what turned out to
be Roach's performance appraisal and rating for 1989-90. Judge's Decision at 7.
The Authority has previously held that the timing of management actions may be
significant in determining whether an employee's protected activity was a
motivating factor, within the meaning of Letterkenny, in the agency's
decision to take action against the employee. See, for example,
United States Department of Transportation, Federal Aviation Administration,
El Paso, Texas, 39 FLRA 1542, 1552 (1991). In this case, where the employee
performed basically the same amount of work in much less time, where no
performance problems were found in the first 6 months of the appraisal period,
and where the performance rating was determined by the supervisor around the
same time as that supervisor made a statement connecting the employee's
protected activity with her performance, we find that the timing is significant
in demonstrating that the employee's protected activity was a motivating factor
in the Respondent's decision to lower her performance rating.

In these circumstances, we find that the General Counsel has
established a primafacie case of discrimination under
Letterkenny.

We next consider the Respondent's affirmative defenses to determine
whether the Respondent established, by a preponderance of the evidence, that it
had a legitimate justification for its action and would have taken the same
action in the absence of protected activity. Letterkenny, 35 FLRA
at 123. The Respondent argued before the Judge that Roach's performance rating
was lower in 1989-90 based on timeliness and quality. See Respondent's
Post-Hearing Brief at 3. The Respondent filed no further submissions with and
made no arguments to the Authority in 46 FLRA 1375 or in the instant case.
The record shows that management expressed concerns about the timeliness of
Roach's work in June and early July of 1990 and that after Caswell had
prioritized Roach's current requisitions, Roach met required deadlines. The
record also shows that Caswell, who approved the rating, testified that Roach
was not rated in conformity with critical element 1, which involves purchasing
and requisitions. We find that the Respondent has not shown what performance
standards or elements were applied to evaluate the timeliness of Roach's
performance on requisitions and whether, pursuant to those standards, Roach was
expected to perform 40 hours of work per week while at the same time
spending over one-quarter of her time on approved official time. In these
circumstances, and in view of our determination above that the Respondent's
asserted concern with the timeliness of Roach's work was linked to Roach's
protected activity, we find that the Respondent has not demonstrated that its
concern with the timeliness of Roach's work is a legitimate nondiscriminatory
reason for lowering Roach's performance rating. Moreover, in the absence of
further explanation by the Respondent, we are unable to determine that the
Respondent's asserted concern with the quality of Roach's work in 1989-90 was a
legitimate justification. Finally, as the Respondent has failed to argue, much
less establish, that it would have given Roach the same rating absent
consideration of her protected activity, we find that the Respondent has not
rebutted the General Counsel's primafacie case of
discrimination. Accordingly, consistent with Letterkenny, we find that
the Respondent violated section 7116(a)(2) of the Statute by lowering Roach's
performance rating for the 1989-90 performance period.

C. Section 7116(a)(1) of the Statute

The standard for determining whether management's statement or conduct
violates section 7116(a)(1) of the Statute is an objective one. The question is
whether, under the circumstances, the statement or conduct would tend to coerce
or intimidate the employee, or whether the employee could reasonably have drawn
a coercive inference from the statement. For example, Ogden Air
Logistics Center, 35 FLRA at 895. In order to find a violation of section
7116(a)(1), it is not necessary to find other unfair labor practices or to
demonstrate union animus. Id. at 895-96. Although the circumstances
surrounding the making of the statement are taken into consideration, the
standard is not based on the subjective perceptions of the employee or the
intent of the employer. Department of the Air Force, Scott Air Force Base,
Illinois, 34 FLRA 956, 962 (1990) (Scott Air Force Base).

The Judge found that, in the course of refusing to approve several
official time requests, Henry made a statement to Roach "linking official time
usage to a lack of timeliness in getting her work done" and that there was "no
evidence that such words were contemporaneously accompanied by offers of
assistance." Judge's Decision on Remand at 6-7. Where management perceives a
conflict between its right to manage efficiently and an employee's right to
engage in protected activity, management may lawfully seek to accommodate such
a conflict. SeeVeterans Administration Medical Center, Leavenworth,
Kansas, 31 FLRA 1161, 1170-71 (1988).

The parties do not dispute that Union activity increased at the Center
from 1988-89 to 1989-90 and that Roach's use of official time increased from
approximately 2 percent of her time in 1988-89 to approximately 28 percent of
her time in 1989-90. The parties also do not dispute that despite this increase
in official time use, Roach performed basically the same amount of work during
both periods.

During this time of increased Union activity, Henry made a statement to
Roach linking Roach's use of official time with the timeliness of her work. By
linking Roach's protected activity with Henry's perception of her performance,
Henry effectively discouraged Roach from engaging in further protected
activity. That is, in these circumstances, it would be reasonable for an
employee in Roach's position to infer from Henry's statement that her
performance would be perceived as deficient so long as she spent time on
protected activity.(10) Moreover, the statement was made well after performance
problems allegedly occurred and did not include an offer of assistance or
suggestion on how to avoid performance problems in the future, other than to
refrain from engaging in protected activity. We find that the statement was not
made in an attempt to resolve a conflict between management's right to manage
efficiently and the employee's right to engage in protected activity but was an
after-the-fact criticism of Roach's protected activity.

By criticizing Roach's use of protected activity without attempting to
resolve a perceived conflict between the employee's right to engage in such
activity and management's right to manage efficiently, we find that, in the
circumstances of this case, the Respondent, through Henry's statement to Roach,
interfered with, restrained, or coerced employees in the exercise of their
right to engage in protected activity. Accordingly, consistent with Ogden
Air Logistics Center and Scott Air Force Base, we find that the
Respondent violated section 7116(a)(1) of the Statute.

In summary, we conclude, contrary to the Judge, that the Respondent
violated section 7116(a)(1) and (2) of the Statute as alleged in the complaint.

V. Order

Pursuant to section 2423.29 of our Rules and Regulations and section
7118 of the Federal Service Labor-Management Relations Statute, the U.S.
Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba,
Kentucky, shall:

1. Cease and desist from:

(a) Making statements to employees which interfere with, coerce, or
discourage any employee from exercising the rights accorded by the Federal
Service Labor-Management Relations Statute to act for a labor organization in
the capacity of a representative freely and without fear of penalty or
reprisal.

(b) Discriminating against Joyce Roach by unlawfully taking into
consideration in appraising her performance her activities on behalf of the
National Federation of Federal Employees, Local 466, the exclusive
representative of its employees.

(c) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Rescind the 1989-90 appraisal of Joyce Roach and reappraise her
without unlawfully taking into consideration her activities on behalf of the
National Federation of Federal Employees, Local 466, the exclusive
representative of its employees; and provide Joyce Roach with any benefits to
which she would be entitled as a result of the reappraisal.

(b) Post at its facilities at the U.S. Forest Service, Daniel Boone
National Forest, Frenchburg Job Corps, Mariba, Kentucky, copies of the attached
Notice on forms furnished by the Federal Labor Relations Authority. Upon
receipt of the forms, they shall be signed by the Forest Supervisor, and shall
be posted in conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted and shall be maintained for
60 consecutive days thereafter. Reasonable steps shall be taken to ensure that
such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Atlanta Regional Office, Federal
Labor Relations Authority, in writing within 30 days from the date of this
Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY EMPLOYEES THAT:

WE WILL NOT make statements to employees which interfere with, coerce,
or discourage any employee from exercising the rights accorded by the Federal
Service Labor-Management Relations Statute to act for a labor organization in
the capacity of a representative freely and without fear of penalty or
reprisal.

WE WILL NOT discriminate against Joyce Roach by unlawfully taking into
consideration in appraising her performance her activities on behalf of the
National Federation of Federal Employees, Local 466, the exclusive
representative of our employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

WE WILL rescind the 1989-90 appraisal of Joyce Roach and reappraise her
without unlawfully taking into consideration her activities on behalf of the
National Federation of Federal Employees, Local 466, the exclusive
representative of our employees; and provide Joyce Roach with any benefits to
which she would be entitled as a result of the reappraisal.

_______________________________

(Activity)

Dated:_______________ By:________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.

If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional Director,
Atlanta Regional Office, whose address is: 1371 Peachtree Street, NE., Suite
122, Atlanta, GA 30309-3102, and whose telephone number is: (404)
347-2324.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The complaint also alleged that the
Respondent violated section 7116(a)(8) of the Statute. In 46 FLRA 1375, we
found that the General Counsel was not pursuing this allegation and, therefore,
dismissed that portion of the complaint. Accordingly, this allegation will not
be discussed further.

2. The Judge inadvertently referred to
element 5 on Procurement Reports and Files as a critical element.

3. These matters included a grievance
Roach filed on May 31, 1990, over Henry's denial of official time to prepare
for negotiations.

4. Although the Judge noted Roach's
testimony that the amount of work she completed in 1989-90 had decreased by 17
percent, he failed to note Roach's further testimony that "that's not figuring
in [duties involving] the Imprest Cash or the travel advances" and that she
performed essentially the same amount of work in 1989-90. Transcript at 74; 83.
In any event, as the Respondent does not dispute that Roach performed basically
the same amount of work in 1988-89 as in 1989-90, we find that for the purposes
of this case, Roach performed basically the same amount of work in 1988-89 as
in 1989-90.

5. Caswell testified that Roach was not
rated in conformity with critical element 1.

6. Henry testified that she was unaware
that during the mid-year review, Caswell had modified critical element 3 to
require monthly rather than weekly forwarding of vouchers.

7. The General Counsel argued before
the Judge that both Caswell and Henry made coercive statements to Roach. The
Judge noted that the complaint alleged that Henry made a coercive statement and
refused to allow the General Counsel to amend the complaint at the close of the
hearing to encompass Caswell's allegedly coercive statements. The Authority
upheld the Judge's ruling and, thus, only Henry's alleged statement is at
issue.

8. We note the Judge's finding that
"[o]ne could easily surmise that [Roach] received her . . . superior rating [in
1988-89] from that former supervisor because the two were very close friends
and because that supervisor . . . was additionally motivated by considerations
of [Union] solidarity." Judge's Decision on Remand at 10. As Lesch rated Roach
as Fully Successful in 1987-88 and as Caswell signed off on both the 1987-88
and the 1988-89 ratings, we do not adopt the Judge's suggestion that the rating
in 1988-89 was questionable. See Joint Exhibits D and E. Further, there
is no record evidence supporting the Judge's finding that considerations of
Union solidarity motivated Lesch to rate Roach Superior in 1988-89.

9. Roach testified that Henry made the
statement a month or two before she received her performance appraisal, that
is, sometime in August or September of 1990. The Judge noted Roach's testimony
but stated that, based on his "appraisal of Roach's reliability," he gave
"little weight to her testimony that the remark at issue was made in August or
September, even though there is no other statement about its timing." Judge's
Decision on Remand at 7 n.5. Rather, the Judge "th[ought] it likely [that] such
conversations occurred in June or early July, when Roach's problems were
surfacing and most serious." Id. As acknowledged by the Judge, there is
no evidence, other than Roach's testimony, of when Henry's statement was made.
In the absence of any other record evidence, we are unable to adopt the Judge's
determination and, instead, will adopt Roach's testimony that the statement was
made in August or September of 1990.

10. Shortly after the statement was
made, management lowered Roach's performance rating. We found above that
Roach's Union activity was a motivating factor in management's decision to take
such action.